Unfold CFO Tools

Do we owe an 8-K?

The question before the drafting one. Eighteen questions against the thirty-three items — with the judgment each turns on shown, not hidden.

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Have you entered into, amended, or terminated an agreement outside the ordinary course of business?
What this turns on: Two judgments, not one: whether the agreement is material, and whether it is "not made in the ordinary course of business". An amendment counts - Item 1.01 covers amendments to material agreements, and the amendment is often the part that mattered.
1.01, 1.02
Has the company entered bankruptcy or receivership?
What this turns on: Little judgment here. If you are asking, the answer is almost certainly yes.
1.03
Have you determined that a cybersecurity incident is material?
What this turns on: The trigger is the DETERMINATION of materiality, not the incident and not its discovery. That means the clock starts on a decision you control the timing of - which is a responsibility rather than a convenience, because an unreasonably delayed determination is its own problem.
1.05
Have you completed the acquisition or disposition of a significant amount of assets?
What this turns on: Significance is tested, not felt. Rule 3-05 and Article 11 of Regulation S-X decide whether acquired-business financial statements and pro formas are required and for how many years, and that test is not in this tool.
2.01
Have you publicly announced results of operations or financial condition for a completed period?
What this turns on: A press release, an earnings call, a posted deck - any public announcement of completed-period results reaches this item. Note it is FURNISHED rather than filed, which changes the liability position but not the obligation.
2.02
Have you taken on a material direct or off-balance-sheet obligation, or has one accelerated?
What this turns on: Item 2.04 catches a triggering event - a covenant breach, an acceleration, a default. Those often become known internally well before anyone connects them to a filing obligation.
2.03, 2.04
Have you concluded that a material impairment is required?
What this turns on: The trigger is the CONCLUSION, and the item expressly contemplates that it can be reached in connection with the preparation of financial statements - so the date it is reached is a fact someone should be able to state.
2.06
Have you received a notice from your exchange about non-compliance, or moved to a different listing tier?
What this turns on: Receiving the notice is the event. Companies frequently wait to see whether they can cure the deficiency first, which is a separate and later question.
3.01
Have you sold equity securities in an unregistered transaction?
What this turns on: Includes conversions and issuances that nobody thinks of as a sale at the time.
3.02
Has your independent accountant resigned, been dismissed, or been newly engaged?
What this turns on: All three directions trigger it, including the engagement of the replacement, and the disclosure required by Item 304 of Regulation S-K is substantive rather than a name change.
4.01
Have you concluded that previously issued financial statements should no longer be relied upon?
What this turns on: The trigger is the conclusion, by the board, a committee, or an authorised officer. The commonest failure is not refusing to file - it is a determination everyone understood was reached weeks before anyone wrote down a date.
4.02
Has a change in control of the company occurred?
What this turns on: Control, not ownership percentage. They are related and not the same.
5.01
Has a director or a principal officer departed, been appointed, or had their compensation arrangements materially changed?
What this turns on: Item 5.02 distinguishes resignation, refusal to stand for re-election, and removal, and the circumstances of a departure can themselves be disclosable. A departure framed internally as amicable can still carry a disclosure obligation nobody intended. Compensation changes for covered officers reach this item too.
5.02
Have you amended your articles or bylaws, or changed your fiscal year?
What this turns on: Mechanical, and easy to forget because it is usually handled by people who do not think about 8-Ks.
5.03
Have you amended your code of ethics, or granted a waiver from it?
What this turns on: A waiver granted to a covered officer is the part that surprises people.
5.05
Have you held a meeting at which shareholders voted?
What this turns on: Mandatory after any shareholder vote, and the clock runs from the MEETING rather than from certification of the results. It is the single most commonly missed item on the form precisely because it feels administrative.
5.07
Have you disclosed material non-public information selectively, or do you need to make a Regulation FD disclosure?
What this turns on: Regulation FD is its own regime with its own timing. If a selective disclosure has already happened, the question is no longer whether to file but how quickly.
7.01
Is there something else material that you want on the record?
What this turns on: Item 8.01 is voluntary - it exists for disclosure the company considers important and no other item covers. Using it is a choice, and a defensible one.
8.01

This is a structured prompt, not advice and not a clearance. Every hard question on Form 8-K is a materiality or characterisation judgment the form leaves to you and your counsel.

The list is published. The judgments are not.

Nothing about Form 8-K is secret. The Commission publishes the thirty-three items and each one says what it wants. If deciding whether you owe a current report were a matter of reading the list, nobody would ever miss one, and companies miss them constantly.

What makes it hard is that almost every item reaches you through a question the form declines to answer. Is this agreement material. Was it made in the ordinary course of business. Was that departure a resignation or a removal, and were the circumstances themselves disclosable. Is the incident material, and on what date did somebody decide that. Those are the questions where the work is, and a decision tree that swallows them behind a yes or a no has not removed the risk — it has moved it into a place where nobody will find it again.

So this tool puts the judgment underneath every question, permanently, and treats “not sure” as a real answer that produces a live item rather than a negative. The output of an honest run is usually a short list of things somebody needs to decide, which is more useful than a verdict and considerably more honest.

Three failures are worth naming because they recur. The amendment to a material agreement, where the company filed for the original contract and not for the change that actually mattered. The departure that everyone involved considered amicable, which Item 5.02 may still require something about. And the event that was already public — announced, reported, discussed — where nobody filed because everybody already knew. That last one is the most common of all, and it is the easiest to avoid once you have noticed that the obligation is to file rather than to inform.

What this tool does not do

It asks eighteen questions against thirty-three items and has never seen your company, so a clean run through it is a reason to stop worrying about those eighteen things and nothing more. It deliberately never says that no 8-K is required. Every hard item turns on a judgment the form leaves to you - materiality, ordinary course, whether a departure was a resignation - and the tool shows you what the judgment is rather than making it. The item list and instruction text are read from the SEC's published Form 8-K, not from memory.

  • Deciding materiality, which is the judgment underneath most of the form and is not a checklist question
  • Rule 3-05 and Article 11 significance testing, which decides whether acquired-business financial statements and pro formas are required
  • Telling you that you have no obligation - it can only report what its own questions reached
  • Computing your deadline - several items run from a determination rather than from the event, and the date of that determination is a fact only you have
  • Whether an event is one item or several, which is often the real question
  • Drafting anything, or checking a draft you already have - that is the 8-K review tool
  • Your securities counsel, who is the actual control on every judgment named here

Frequently asked questions

How is this different from the 8-K review tool?

This asks whether you owe one. The review tool assumes you have decided to file and checks whether the draft is complete and whether it is already late. They are deliberately separate because they fail in different ways: this one fails by missing an obligation, that one fails by filing something incomplete.

Which item gets missed most often?

Item 5.07, the results of a shareholder vote. It is mandatory after any shareholder vote, the clock runs from the meeting rather than from certification of the results, and it gets missed precisely because filing a form about a vote everyone attended feels administrative rather than like disclosure. Item 5.02 is the close second — companies answer "no" to it when the honest answer was more complicated.

We announced it in a press release. Does that cover it?

No. A press release, a counterparty's announcement, or press coverage does not discharge the filing obligation. This is a common and entirely understandable failure: everyone who would have noticed the missing 8-K already knows what happened, so nothing prompts anyone. The obligation is to file, not to inform.

Why does the tool refuse to tell me no 8-K is required?

Because it cannot know that. It asks eighteen questions against thirty-three items and it has never seen your company. A clean run is a good reason to stop worrying about the eighteen things it asked about, and it is not a statement about everything else that happened this quarter. A tool that issued clearances would be more satisfying and would occasionally be badly wrong.

Several items say the trigger is a determination rather than an event. Why does that matter?

Because it changes when the clock starts and who starts it. Item 1.05 runs from the determination that a cybersecurity incident is material, 4.02 from the conclusion that financial statements cannot be relied upon, 2.06 from the conclusion that an impairment is required. In each case the date is a decision somebody made, which means somebody should be able to say when it was made — and the common failure is a determination everyone understood was reached weeks before anyone wrote a date down.